United States District Court, D. Colorado
ORDER TO SHOW CAUSE
SCOTT
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on the Motion to Dismiss
Plaintiff's Third Amended Complaint Pursuant to
Fed.R.Civ.P. 12(b)(1) and (6), filed by Defendants Unknown El
Paso County Sheriff's Deputies, Unknown Personnel of the
El Paso County Bomb Squad, and Unknown Personnel of the El
Paso County Hazmat Team (collectively, the “El Paso
Defendants”) [#32] (the “Motion”). The
Motion has been referred to this Court. [#33] This Court has
carefully considered the Motion and related briefing, the
entire case file and the applicable case law, and has
determined that oral argument would not materially assist in
the Motion's disposition. For the following reasons, the
Court ORDERS Plaintiff to SHOW CAUSE, if any there be, in
writing on or before November 19, 2018, why this case should
not be dismissed for the reasons set forth in this Order.
I.
BACKGROUND[1]
On or
about June 30, 2016, an RV owned by Plaintiff Arick Justin
Rinaldo was lawfully parked at a scenic overlook in or near
the City of Manitou. [#20 at 4] On that day, upon exiting and
locking the RV, Plaintiff was confronted by the defendant
unknown El Paso County deputies and bomb squad personnel, who
took possession of the keys to the RV. [Id.] Even
though they were in possession of the keys, the unknown El
Paso County deputies and bomb squad personnel used a bomb
squad robot or other device to forcibly smash and break into
Plaintiff's RV without a warrant. [Id. at 4, 5]
As a result, the door and frame of the RV were smashed and
the body of the RV buckled. [Id. at 4] The unknown
El Paso County deputies and bomb squad personnel, along with
the defendant unknown personnel of the Colorado State Patrol
Hazmat Team and unknown personnel of the El Paso County
Hazmat Team, then conducted a warrantless search of the
contents of the RV, tossing all the items in the RV and
destroying some of the property contained therein.
[Id.]
Plaintiff
alleges that Defendant Trooper Schmidt and the defendant
unknown Manitou Springs officers or deputies seized him by
force and illegally detained him for approximately six to
seven hours first in Trooper Schmidt's vehicle and then
in the Manitou police station. [Id. at 4, 7]
Plaintiff contends that unspecified defendants made
defamatory and libelous statements to the press that the RV
was a “Rolling Meth Lab, ” that Plaintiff had
barricaded himself in the RV, and that Plaintiff's
girlfriend had fled on foot. [Id.] Nothing was found
in the RV to support the claim that the RV was used to
manufacture methamphetamines. [Id. at 7]
On June
28, 2017, Plaintiff filed this lawsuit. [#1] On August 2,
2017, Plaintiff filed an amended complaint. [#10] On August
4, 2017, the Court ordered Plaintiff to file an amended
complaint utilizing the court-approved prisoner complaint
form. [#11] On September 1, 2017, Plaintiff filed the Amended
Complaint. [#12] On October 5, 2017, the Court issued an
order pointing out deficiencies in the Amended Complaint and
ordering Plaintiff to file a second amended complaint. [#13]
On November 2, 2017, Plaintiff filed his Second Amended
Complaint. [#14] On December 12, 2017, the Court issued an
order pointing out deficiencies in the Second Amended
Complaint and ordering Plaintiff to file a third amended
complaint. [#16]
On
February 8, 2018, Plaintiff filed his Third Amended
Complaint. [#20] On February 26, 2018, the Court issued an
order pointing out deficiencies in the Third Amended
Complaint and ordering Plaintiff to file a fourth amended
complaint within 30 days of the order. [#21] Because
Plaintiff failed to file a fourth amended complaint, the
Court conducted its review pursuant to 28 U.S.C. § 1915A
on the allegations contained in the Third Amended
Complaint.[2] [#22 at 3] The Court interpreted the Third
Amended Complaint as asserting the following causes of
action: (1) illegal search and seizure without due process in
violation of the Fourth Amendment; (2) damages or deprivation
of property in Plaintiff's RV; (3) damage to
Plaintiff's RV; (4) breach of duty; (5) defamation of
character/libel; (6) false imprisonment; and (7) due process.
[Id. at 4] The Court dismissed the second and third
claims-alleging damages to Plaintiff's RV and the
property therein-as legally frivolous. [Id. at 5-6]
The Court did not address the merits of Plaintiff's
first, fourth, fifth, sixth, and seventh claims but instead
had them drawn to a presiding judge. [Id. at 5]
On May
9, 2018, the Clerk of Court arranged for service of the Third
Amended Complaint on Defendants. [#24] On that same date,
Peter Lichtman of the Office of the El Paso County Attorney
(the “El Paso Attorney's Office”) purported
to waive service of process on behalf of the Unknown El Paso
County Sheriff's Deputies and the Unknown Personnel of
the El Paso County Bomb Squad. [#25] Neither the specific
sheriff's deputies nor the specific bomb squad personnel
are identified in the waiver. [Id.] On May 18, 2018,
Mr. Lichtman and his colleague at the El Paso Attorney's
Office, Kenneth Hodges, purported to enter their appearances
on behalf of “Defendants Unknown El Paso County
Sheriff's Deputies, Unknown Personnel of the El Paso
County Hazmat Team and Unknown Personnel of the El Paso
County Bomb Squad.” [#28, 29] The Notices of Appearance
failed to identify any specific sheriff's deputies, bomb
squad personnel, or hazmat team personnel. [Id.]
On June
7, 2018, the U.S. Marshals Service filed Unexecuted Process
Receipts and Returns for Defendant Trooper Schmidt and
Defendants Unknown Deputies of the Manitou Springs Police
Department (the “Unknown Manitou Springs
Defendants”). [#30, 31] The Return for Trooper Schmidt
indicated that he could not be served at the provided
address, because Trooper Schmidt “is retired from
Colorado State Patrol” and his “current
whereabouts are unknown.” [#30 at 1] The Return for the
Unknown Manitou Springs Defendants indicated that they could
not be served by the Marshal because the Unknown Manitou
Springs Defendants are “not known to the Manitou
Springs Police Department.” [#31 at 1] On August 21,
2018, the Marshal filed Returns with regard to Defendants
Unknown Personnel of the Colorado State Patrol Hazardous
Materials Team and Defendants Unknown Personnel of the
Colorado State Patrol (collectively, the “Unknown
Colorado Patrol Defendants”), indicating that they
could not be served because the Colorado State Patrol was
“unable to determine who to serve.” [#35, 36]
On July
9, 2018, the El Paso Attorney's Office filed the instant
Motion, on behalf of the El Paso Defendants without
specifying the names of any of the specific sheriff's
deputies, bomb squad personnel, or hazmat team personnel.
[#32] On September 11, 2018, Plaintiff filed his response to
the Motion.[3] [#38] The El Paso Attorney's Office
then filed a reply in support of the Motion on behalf of the
El Paso Defendants, again without specifying the names of any
of the specific sheriff's deputies, bomb squad personnel,
or hazmat team personnel. [#42]
II.
ANALYSIS
A. The
El Paso Defendants' Motion
As
noted above, the El Paso Attorney's Office purported to
accept service, enter notices of appearance, and file the
instant Motion on behalf of the El Paso Defendants without
ever specifying the identifies of the defendants, who were
identified in the Third Amended Complaint (and the documents
filed by the El Paso Attorney's Office) only as Unknown
El Paso County Sheriff's Deputies, Unknown Personnel of
the El Paso County Bomb Squad and Unknown Personnel of the El
Paso County Hazmat Team. Neither the El Paso Attorney's
Office nor Plaintiff has provided any “procedural basis
on which an unidentified party can appear in a lawsuit and
assert a defense without revealing his or her
identity.”[4] Pitre v. City of Eunice, No.
6:14-CV-02843, 2015 WL 3648763, at *1 (W.D. La. June 10,
2015) (recommending that motion brought on behalf of
unidentified city police officers be denied, in part, because
it “is fatally flawed”); see also Perez v. City
of Hastings, No. 4:16CV3158, 2017 WL 1066574, at *4 (D. Neb.
Mar. 21, 2017) (questioning “whether the named City and
County defendants and their counsel have authority to respond
for the as yet unidentified Doe defendants in their
individual capacities and seek dismissal on their
behalf”). Except in limited circumstances not
applicable here, [5] the Federal Rules of Civil Procedure do
not allow parties to proceed anonymously or under fictitious
names. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th
Cir. 2001). As the Tenth Circuit has explained:
“Proceeding under a pseudonym in federal courts is, by
all accounts, ‘an unusual procedure.'”
Femedeer v. Haun, 227 F.3d 1244, 1246 (10th
Cir.2000) (quoting MM v. Zavaras, 139 F.3d 798, 800
(10th Cir.1998)). Rule 10(a) of the Federal Rules of Civil
Procedure requires that every pleading contain a caption
setting forth, inter alia, “the title of the
action, ” and this title must include “the names
of all the parties.” Similarly, Rule 17(a) mandates
that “every action shall be prosecuted in the name of
the real party in interest.” See also
Femedeer, 227 F.3d at 1246. The Rules provide no
exception that allows parties ...